The Gristle

Predictions of Protractions

Wednesday, January 3, 2018

PREDICTIONS OF PROTRACTIONS: “A New Year invites reflection and prediction—and reposition, as the past and future are studied and aligned.” At the outset of 2017, the Gristle predicted a narrative of a new Federalism—“an old story where national directives chafe up against states’ rights and regional values that resist those directives, and through time and experimentation the two (hopefully) become a harmonious whole. This old story has been written for more than a century in the Southern portion of our nation; and perhaps it’s time for the West to begin its own chapter, for clearly the West is having its own conversations about social and environmental justice, about the roles of science and technology in public affairs, and indeed even the health and future of political parties and political directions that are markedly different from those in other parts of the country.”

That prediction was borne out in dramatic form as this Washington set about to resist new mandates from that other Washington.

In one sense, this new Federalism is genetically encoded in our statehood. A vigorous populism and progressivism was stirring as pushback against the political corruption of the robber baron era of the late 19th Century, and Washington set about to create agencies and methods to empower citizens over their government.

“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights,” establishes the first article in the state constitution’s declaration of rights. And the state’s constitution is a more generous document to that goal than the national version.

In a more specific sense, “consent of the governed” meant the state was referendable, subject to the direct democracy of initiative. And a central duty granted to the state’s attorney general is to uphold and defend the public’s interest and the laws of Washington.

We saw again and again in 2017 the Attorney General and other state offices push back against federal initiatives that run contrary to those laws and interests. The effort was largely successful—not entirely successful—and we may see some of those efforts tested in front of the United States Supreme Court later this year.

Among the agencies and entities designed to represent the interests of citizens is the Washington Utilities and Transportation Commission, originally formed to protect the public against rapacious encroachments by railroad and utility corporations.

Attorney General Bob Ferguson and Governor Jay Inlsee recently proposed using the UTC in its traditional role to protect “net neutrality”—a federal provision that required internet providers deliver all content at the same speed and made it illegal to prioritize or throttle specific types of traffic.

In December, the Federal Communications Commission by a single vote repealed net neutrality protections despite the protests of tech companies, analysts and activists. The FCC included language in its repeal that prohibits states and local governments from establishing their own net neutrality protections.

The state initiative would require all internet service providers that use state-owned rights of way and utility poles to be certified as net neutral, or lose their access to 90 percent of their network. In subsequent action, a proposed bill would extend net neutrality to networks on private rights of way, while the state’s federal representatives would reinstate net neutrality nationally. The bill also forbids blocking content from “edge providers,” like Google, Facebook, and Netflix, protecting their rights to deliver content to consumers without paying a premium for that delivery. Republicans oppose all of these measures.

The plan would start by directing the UTC to establish a certification that internet companies can acquire by complying with net neutrality principles. Without that certification, the state would not provide benefits like easements and use of UTC poles.

Is the proposal defensible? Will it hold up in court?

Perhaps the more salient question is, will the proposal slow things down sufficiently that the better angels of our nature may take hold?

Republicans and their taskmasters hold all the levers of power in the United States; but perhaps not forever, or for long.

The state’s effort to protect net neutrality as a right of its citizens is just one of a series of actions undertaken by the Attorney General and Governor in the past year.

The state pushed back against the Trump administration’s retreat on climate action, joining other states that represent approximately 68 million people—or nearly one in five Americans—to form a Climate Alliance to carry on the commitments of the United States to the Paris Climate Agreement signed by 195 nations. The AG also warned the state would defend its environmental laws against the proposed weakening of enacting federal legislation for clean air and clean water.

Washington joined 12 other states in a federal lawsuit to defend the Affordable Care Act—and the more than 800,000 Washingtonians who depend on it for their health care—against funding cuts and other actions proposed Congressional Republicans to weaken the new law.

The AG stepped up to enforce other state consumer protection laws against assaults by a belligerent federal administration. Among these are the state’s nascent marijuana law reforms, making it clear the state will defend its legislation against federal efforts to interdict and criminalize cannabis use. The AG also sought debt relief for student loans against aggressive collection actions permitted by changes at the federal level.

The AG also joined a federal lawsuit challenging the President’s ban on transgender individuals serving in the military, and continues to defend the state’s civil rights laws against a combative new federal administration.

In perhaps the most far-reaching effort, the AG issued a bright-line defense of the state’s immigration laws, protecting the concept of “sanctuary jurisdictions” and argued that the administration should not force local law enforcement to carry out federal immigration policy at the expense of efforts to promote public safety in their own communities. The state called upon the Trump administration to defend the Deferred Action for Childhood Arrivals program, or DACA, a program that allows young adults brought to this country as children a pathway to citizenship. And the AG’s office was among the first to challenge the administration’s travel ban, arguing that the policy “drips with religious intolerance, animus, and discrimination.”

The U.S. Supreme Court in October dismissed the technical grounds that challenged Trump’s executive order to limit travel to the United States, allowing the ban but leaving the door open for continued legal challenge against the order. In particular, the ruling by justices permits more thorough discovery of documents the administration used to erect the ban.

The review will likely be heard by justices this year, and—in that dance where states’ rights must ultimately yield to federal authority—the administration’s order may very well be upheld: A President’s powers are vast.

It’s a caution that the state’s efforts to defend against federal malevolence is temporary at best. The efforts will not hold out in the long term, but maybe long enough. The long term requires a better kind of America, the kind of country that only an engaged citizenry united in values can build.